Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-01-14
from this single consideration

allow such Sergeant or anv constable suCt
deputy or deputies. as they NAV think
/ proper This section has been so tal
amended as toprovide for the election o
the Sergeant by the people. There heing
two sections in the same act, one pro
viding for the appointment OF city
watch and the other Of a Sergeant and In,
| deputies, the officers referred 10 therein
must he regarded and treated as two dis
! tinct classes OF officers. Ii is believed IN,
| power to appoint Il city watch has not bccr
exercised by the Council In any event i
would be 4 strained construction tO con
cludc that when Council adopted the lourtl
section of this ordinance. i. e., The Sli,
Commissioners with the City Sergeant an,
his deputies shall constitute a Police De
partment of the city of Wheeling, " il WA
exercising the authority TO appoint city
watch, such ordinance including, as i
does, the Sergeant and his deputies, VIII,
cannot he regarded Us part Of the 'cit,
watch" ! am, therefore, of the opinion
that the authority claimed by the Counci
cannot be derived from this provision O
law.
In the next place, it is supposed by tn
respondents that the hesiXty-cighth section o
the Act of March II, 1896, has some bear
ing on the question. The Act not providin,
in terms what should he the duty of th
Sergeant and his deputies, this section, il
order To supply the want, provided that th
Council should prescribe their duties IN,
also what they should not do; but ii is dil
ticult to see how the power to create a Po
lice Board can he inferred from this sixty
eighth section, and do not consider i
necessary TO dwell on it.
And again the twcnty-ninth section o
the Act of March :, l-79. and the thir,
section of the Act of March -, 1SS2, ar,
relied on aS sufficient 10 furnish the requi
site authority.
speak OF these two sections together
because they are naturally repeated, ant
both involve the same question. Th,
tweuty-ninth section of the Act of March
| 1873 Isl us follows. 81 far as il is pertinent
| The Council shall have authority to pas
all ordinances mot rcpugnant to the Con
stitutiOn and laws of the United States an,
of this State which shall he necessary IN,
proper to carry into full effect any power
authority, capacity or jurisdiction which i
or shall be granted TO, or vested in the sai'
city or in the Council, or any officer of sal,
city"
The third section of the Act of Marcl
lsS?, | have already quoted, but will re-
peat il in order to bring out the necessary
point 1t is rs follows, 81 far Us it is nee
rsSary to quote it: THE Council Shal
have authority. unless otherwise provided
by law, 10 provide by ordinance for the
appointment or election by Council OF
such officers, whose appointment is moi
provided for by law, aS shall be necessary
or proper to carry into full effect any
authority, power capacity or jurisdiction
which is or shall be- vested in the said city
or in the Council or in the Mayor OF
alderman thereof; To grant Ia the oilccrs
50 appointed or elected by the Council th,
powers necessary or proper for the purposes
above mentioned, TO define their duties
land Ia fix their terms Of Office
The former section means simply this
When any power OI authority has been
granted To, or is vested in the Council tha
are necessary and proper Ia carry into lul
effect such power or authority; and th
latter is of the same character; it mcrcl,
authorizes the appointment or election b,
Council of such officers as may be ncccSSar,
or proper to carry into full effect any p0wc
or authority vested in il, or in the city o
in the Mayor, in case their appointment q
! rIcctt::JJn !.,,' not been oth"rwiS" provide,
for, with the right to delegate To them sue
| power - may be- Necessary or proper 10
| the purpose.
In other words. in neither of these see
tiOns is there grant oi any indcprnden
or specific power to the Council; both impl,
or require the existence at powers contcrrct
by other provisions of the charter. WhcI
a power has been aScertaincd 10 he vested
in the Council, these 81, ions come int,
play aud authorize the Council to carry i
INTO full power and effect hy having Ordi
nanccs necessary and proper TO this end
and also to provide Tor the appointment ol
election Of the necessary officers and to con
fer upon them the powers necessary IL
effect the purpose.
As we have already seen the Leg stature
has authorized the Council to establish u
Fire Department; these two sections then
become patent and give the Council the
power 10 pass ordinances and To provide
tOr the appointment of the necessary Oili-
GERS in such department Many other
illustrations could be given to bring out
clearly the meaning of these provisions
In this view of the case it is clear that
the power to create Police Department.
and to provide for the election or appoint
mcnt of Police Commissioners, cannot he
traced to the foregoing sections of the
charter.
am referred to the case of Gregory vs..
the City Of bridgeport, IL Conn, 10, refer
to it specially because it is the strongest
and most favorable case Gted by the re-
SpOndrnts. The validity Of the appoint
mcnt OF a Superintendent of Wharvrs be
ing incidentally involved in the ease, it
not appearing that there was an express
grant of power 10 appoint such superin-
tcndcnt.
But it did appear that the Council of
Bridgeport was empowered by its charter
10 make ordinances relating to the wlIarvcs
and the anchoring, moving and mooring
of vessels with the city, and also to con-
stitute aud appoint all necessary and
proper officers, and also invest them
with the power and authority necessary
and proper and not inconsistent with the
laws of the State and Of the United States,
to carry into effect all the bylaws, Ordi-
nanccs, and lawful orders of the Common
Council. The Court held the appointment
Of the Superintendent ny The Council!
valid. But fail Ia tind anything in this
case inconsistent with the foregoing views
In the first place the Council of Bridge
port WAS invested with power tO make
ordinances in relation to wharyG-. Then
it was authorized 20 appoint necessary
and prOrrr OhtcerS To carry into effect all
the bylaws. ordinances and lawful Orders
of the Council" But such /. not the
charter OF the city ~ Wheeling. Its
Council is not authorized to appoint Off
gers necessary and proper to CARY INTO el-
feet lis bylaws aud ordinances, but it is
authorized 10 appoint officers necessary Ia
carry into effect any power or authority
vested in it or granted To it by the Legisla-
turc.
This is an important difference between
the charters OF Bridgeport and Whee.,uG-
one so vital that it deprive. tup case cited
of any analogy . tile case ut bar
TEe:r ~ but one other provision Of the
charter which is claimed as requisite au-
l,